A NEW STANDARD FOR PREEMPTIVE MILITARY ACTION AGAINST WMD THREATS

Abstract

International law clearly requires an imminent threat of attack as a justification for the preemptive use of military force. However, the standard definition of an imminent threat was derived centuries before the development of nuclear, chemical, or biological weapons or ballistic missiles and other delivery systems that can reach their targets in a matter of minutes. Any use of force to alleviate threats posed by weapons of mass destruction (WMD) prior to tactical warning of the actual launch of such weapons falls into the legally and ethically controversial category of “anticipatory self-defense,” leaving decision makers potentially liable to prosecution for war crimes. Effective and ethical enforcement of nonproliferation therefore demands a standard for imminence of threat broad enough to allow military action as a last resort but sufficiently restrictive to prohibit indiscriminate action against suspected WMD programs. Following a critical review of selected literature and cases on preemption, the author proposes a new standard for preemptive military action: the existence of operational WMD, or a clandestine program to develop WMD, in contravention of international law. The author discusses the implications of this new proposed standard, which at the time of writing would permit preemptive attack against WMD-armed terrorist groups but prohibit it against all states except Iran and possibly North Korea.